Evaluating international ethical standards and instruments

Author: Dr Emma Wilson

This paper addresses the key issue of the entire project, namely the critical evaluation of standards and instruments through a detailed analysis of their contents, implications, and deficiencies, especially in relation to the interests of indigenous peoples.
It takes a global perspective, to provide the widest possible setting for the papers which follow, and the longer version opens this out with specific examples from the indigenous Arctic.
International instruments refer to indigenous peoples’ right to benefit from natural resource development, at least on an equal footing with other parts of the population, while governments are expected to prioritise their wellbeing in economic development planning. The paper offers an overview of key international standards and instruments aimed at protecting indigenous peoples’ rights in the context of extractive industry development that takes place on their lands. It analyses a wide range of international instruments, which are influential in the governance of extractive industry projects, particularly in relation to indigenous peoples’ rights. The coverage includes not only international hard and soft law, but also industry standards and guidelines. The paper highlights points of particular relevance
to indigenous peoples, as well as discrepancies between overall requirements of documents and clauses pertaining to indigenous peoples.
The paper gives a step-by-step guide to: the evolution of international standards and instruments relating to indigenous peoples; international governance of extractive industries, the emergence of the human rights and business discourse, with
a focus on the UN Guiding Principles; and the definition of indigenous peoples and the position of indigenous rights within these documents.
The content of the selected instruments is analysed and compared in relation to five key issues identified in the course of our research:

1. due diligence;
2. consultation;
3. free, prior and informed consent (FPIC);
4. benefit sharing;
5. access to remedy.

Particular attention is paid to James Anaya’s UN reports on extractive industries and indigenous peoples, which constitute an important commentary on the UN Guiding Principles and their relevance to indigenous rights protection, given the lack of direct coverage of indigenous rights in the UN Guiding Principles themselves. Central to Anaya’s commentary is his presentation of his ‘preferred model’ of resource development, with greater indigenous control than the current ‘prevailing model’.
Examples of implementation of international instruments include ‘Towards Sustainable Mining’ (TSM) in Canada and Finland, The UN Global Compact in Russia, Norway’s National Action Plan to implement the UN Guiding Principles, how OECD National Contact Points address a complaint by Sami reindeer herders, and how the Compliance Advisory Ombudsman addressed a complaint
by Russian villagers. The paper also highlights OECD-recommended steps for implementing an FPIC process, and the effectiveness criteria for non-judicial grievance mechanisms (as defined in the UN Guiding Principles).

Recommendations

• Interpretation of international instruments: The paper aims to assist with broad understanding and to point towards important analysis to be found in various existing published sources. Given the great number of different standards and instruments, there is a need to build greater understanding of how to interpret them and how they are implemented in practice. It is particularly important to develop greater knowledge of how commentaries and guidance documents help in the understanding, interpretation and practical application of international instruments.
• Government responsibilities: Under international law, states are ultimately responsible for ensuring compliance with human rights norms within their jurisdictions, including the rights of indigenous peoples and communities. This requires governments to ensure effective incorporation of international standards into national legal and regulatory regimes, and also to take responsibility for early engagement with indigenous peoples and communities, including before issuing exploration licences. This is not only in line with ILO 169, but also a sensible risk mitigation strategy.
• Company responsibilities: Companies need to be prepared to go beyond mere legal compliance in order to respect internationally recognised indigenous rights, and in order to engage meaningfully with local indigenous communities living and practicing their traditional livelihoods activities close to extractive project sites.

• The need for company policies: Many companies do not even have policies in place, indicating that they have not thought about the issues, have not formalised any procedures, and do not have defined lines of responsibility for dealing with these issues. It is important to assess whether a company has made a commitment to something by producing a policy. If a policy is in place, there is something against which to measure a company’s performance and hold it to account. Company rankings, such as the one produced
by this project, are a way to draw attention to
a company’s policies and preparedness, and offer field researchers a basis for assessing and challenging a company’s practice on the ground. The Canadian Towards Sustainable Mining
(TSM) initiative is not just a set of standards, but a system for demonstrating implementation of these standards and a way of driving performance improvement over time, which now also has been adopted by Argentina (2016) and Botswana (2017). We recommend Norway to consider an adoption of TSM as well. Our research indicates that Norway might benefit from such an initiative as a way to set standards and build collaboration and learning within the Norwegian mining sector. In particular, this would allow a targeted focus on community engagement and indigenous rights, following the experience of Canada.
• The gulf between policies and practice: More effort should be made to ensure compliance on the ground with standards and policies which may exist only on paper or on a website. We strongly encourage site visits by auditors and fieldwork by independent researchers, and more open channels for feedback from local stakeholders.

• Community control: The value of this is demonstrated in many of our project papers, but international instruments often fail to mention this option in practice. This should be included and enhanced in future drafting of such instruments.
• Transparency: Greater transparency is needed
in regard to the implementation of international standards and the negotiation of agreements. This is important both to promote accountability in the application of the standards, as well as to enable greater learning from practical experience.
• Lesson sharing: It is important to understand how contextual factors affect the understanding and application of international instruments. There is therefore a need for greater sharing of lessons learned and case study experience from different contexts. This should be produced in different appropriate formats, from academic research papers, to policy briefings, to online databases, to round-table discussions, to community radio programmes.

Available both in a full version, and as a shorter policy summary. The full version of the paper is 68 pages long and contains numerous boxes highlighting key initiatives, a list of acronyms and abbreviations, and a list of key references. Annex 1 gives a comparison of the requirements of seven selected international instruments in terms of the five identified key themes, while Annex 2 provides a concise directory of 20 selected international instruments. The policy summary version is 17 pages long, and incorporates Annex 1.